In virtually the first test of congressional authority to prohibit private discrimination, the Civil Rights Cases reflected the firmly constructionist view that the recent Fourteenth Amendment operated only against government actions.

The cases arose from the refusal of public accommodations to five blacks, who sought relief under the protection of the Civil Rights Act of 1875. The Act, in part, prohibited racial discrimination in inns, public conveyances, and places of public amusement. In passing the Act, Congress used as justification an expansive view of the Thirteenth and Fourteenth Amendments which, in their view, granted it the power to regulate both state and private actions which tended to restrict full equality for newly freed blacks.

The competing conservative view of the Amendments held that they simply set the slaves free (Thirteenth), and guaranteed that the states would not deny them full citizenship and equal rights under the law (Fourteenth).

Justice Joseph P. Bradley, writing for the majority, rejected the more radical interpretation used by Congress, finding those portions of the Act that attempted to regulate private behavior to be unconstitutional. He held that the Fourteenth Amendment only prohibited the states from abridging individual rights, and did not operate against the individual. In personal comments (obiter dicta), he went so far as to suggest that private interference with voting, jury service or other rights and obligations enjoyed by the individual under state aegis, would likewise not fall under the jurisdiction of Congress, but of the states.

In rejecting the use of the Thirteenth Amendment as substantiation for the Act, Justice Bradley said that allowing such a broad interpretation would make the freed person "the special favorite of the laws." [Sounds, unfortunately, vaguely like Affirmative Action.]

In his dissent, Justice John Marshall Harlan -- himself formerly a slaveholder -- held that the Thirteenth did, indeed, confer such power on Congress. He felt that the Amendment guaranteed more than just the absence of bondage, but also assured the abolition of all the "badges of slavery".

Along with the Slaughterhouse Cases (1873) and U.S. v. Cruikshank (1876), the Civil Rights Cases formed a constructionist view of the Fourteenth Amendment which halted Congressional efforts to prohibit private discrimination until after World War II.

When it again attempted to accomplish the same goal with the Civil Rights Act of 1964, a wizened Congress this time based its action upon an equally expansive view of the Commerce Clause, giving it power to regulate interstate commerce.